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Chapter 18

Creating powers of search, surveillance and seizure

Part 1

Should new search powers be granted?

New search powers should only be granted when the policy objective cannot be achieved by other means.

If the information or evidence concerned can be obtained by means other than by granting new search powers either by recourse to the common law, consent, or existing powers, those alternatives should be used.

If new search powers are required, the approach that results in the least limitation on privacy rights should be adopted.

Search powers should not be granted for the convenience of the agency or ease of prosecution. Each search power must have a separate justification for why it is necessary. A general justification that search powers are required will not be sufficient. The more invasive a particular search power, the greater the justification required to create that search power. Searches of a person’s body are more invasive than searches of a business premises, and will generally require a greater justification.

In the regulatory context, search powers may have a legitimate monitoring or deterrent effect, but in the law enforcement context it is inappropriate for search powers to be used for coercive or deterrent reasons.

In the law enforcement context, search powers should generally not be available for infringement offences, breaches of regulations, or offences that are not considered serious enough to warrant a sentence of imprisonment. They should generally not be available for offences that are prescribed by delegated legislation.

Statutory law enforcement search powers must be triggered by suspicion that a specific matter or class of matters has taken place. Generally worded law enforcement search powers (which allow “fishing expeditions”) will likely be interpreted narrowly by the courts, and should not be authorised by legislation.

In some cases, the effective exercise of search powers might necessitate the inclusion of a power to require information to be produced (such as codes to access computers) or questions to be answered. However, these powers are likely to be being used in situations where prosecutions are likely to follow, and the privilege at general law (and in the Evidence Act) against self-incrimination should be respected. If grounds exist to override that privilege, then the override should be explicitly stated. If not, then the privilege should be affirmed.

These powers should also respect other privileges such as legal professional privilege.